1. On 26 July 2005 the Trial Chamber in this
case rejected a second application by Pasko Ljubicic
("Accused")
for provisional release.1 In
making that application, the Accused had suggested
that a condition of his provisional release could
include being placed under house arrest in his wife’s
flat in Mostar. The Trial Chamber, finding that that
request constituted a request for modification of
conditions of detention pursuant to Rule 64 of the
Rules of Evidence and Procedure ("Rules"), held that
it was to be made before the President and remitted
the application for provisional release to me "to
the extent that it concerns a request for modified
conditions of detention".2

2. Rule 64 provides as follows:

Upon being transferred to the seat of the Tribunal, the accused shall be detained in facilities provided by the host country, or by another country. In exceptional circumstances, the accused may be held in facilities outside the host country. The President, may, on the application of a party, request modifications of the conditions of a detention of an accused.

3. In referring this matter to me, the Trial Chamber relied on paragraph 13 of the Accused’s second application for provisional release in which he stated:

The Applicant wishes to demonstrate his unconditional
determination to appear before the Court by willing
to, should the Trial Chamber decide so, remain under
house arrest until the beginning of trial. The Applicant’s
determination to consent "to the imposition of any
condition necessary to his provisional release",
even then when those conditions is very rigorous,
is an important fact that the Trial Chamber cannot
neglect.3

While the Trial Chamber reasonably construed this paragraph as being a request to modify the conditions of detention, I am not persuaded that the Accused was making such an application. In my view, the Accused was conveying to the Trial Chamber that he would abide by any conditions that it deemed reasonable to impose should it determine to grant his application for provisional release. Accordingly, I do not consider that it would be fair to the Accused to render a decision at this time without first allowing him the opportunity to specifically address the requirements of Rule 64 and show exceptional circumstances.

4. If the Accused wishes to make an application pursuant to Rule 64, he should do so addressing the requirements of the Rule. Should he bring such an application, the Prosecution will be entitled to file a response thereto.

Done in English and French, the English version being authoritative.

_____________________
Theodor Meron
President

Done this 18th day of August 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1. Decision on Second
Application for Provisional Release, 26 July 2005 ("Decision").
2.
Ibid, paras.19, 35.
3.
Second Application for the
Provisional Release of the Accused, 18 October 2004.